This article was first published in China Change web site on November 14, 2016
About one and a half hours ago, Chinese state media announced that Jia Jinglong had been executed this morning – they killed him faster than we had time enough to translate this appeal, which should still be read and contemplated. – The Editors
Respected president of the Supreme People’s Court Zhou Qiang
As law professors and attorneys long concerned with the development of the rule of law in China, we believe that the Supreme People’s Court’s review ruling in the Jia Jinglong case does not conform to the applicable standards and policies for the death penalty as determined by Chinese law, and that the review procedure did not fully safeguard the right to appeal of the defendant and defending counsel. We herewith issue a joint, solemn appeal that the review ruling of Jia Jinglong’s death penalty not be implemented, and that a collegiate bench be assembled to examine the case. We hope that this case will become an opportunity for improving the Supreme People’s Court’s review procedures for death penalty cases in order to uphold fairness in the judicial system and justice in society.
I. The review of Jia Jinglong’s case did not take into consideration the particular nature of the legal institutions surrounding village assets; it did not consider the impact of traditional customs; it did not consider the phenomenon of corrupt governance of local regimes in village areas — all of which led to serious errors in determining the basic facts of the case.
Regulations governing rural households and leaseholding farm households are a large portion of China’s civil law. In the case of Jia Jinglong, the usage right of the homestead implicated in the case, although registered in the name of household head Jia Tongqing, was controlled by the village’s “one residence per household” regulation, and the right to use the homestead actually resided in all members of the household. After Jia Tongqing tore down the single-storey home and rebuilt a multi-storey home, his son Jia Jinglong expended his own money and labor to personally decorate the second storey. Article 34 of the Property Law of the People’s Republic of China stipulates: “Legally constructing or demolishing a house, or similar conduct, establishes or extinguishes property rights, effective from the point of the completion of the activity.” As such, title to the property should reside with the household collective of Jia Tongqing, Jia Jinglong and other family members. In rural areas there is a common custom for adult sons to only separate their assets from those of their parents upon marriage; given that Jia Jinglong had not yet married, his rights to a share in the family property are not affected. The village committee’s failure to obtain the consent of Jia Jinglong, instead forcing his father to sign an agreement and then demolishing the home that Jia Jinglong prepared for his marriage to his fiancée, is not only obviously illegal, but also violates the basic guidelines of the “General Principles of Civil Law” which call for adherence to public order and common custom.
During their rule a number of responsible individuals holding positions in both the village and Party committees acted in the absence of supervision and checks and balances, concealing public matters of the village from their superiors and deceiving their subordinates, intercepting, stealing and embezzling, doing as they pleased, and governing the village in a highly corrupt manner. Because there are no mechanisms for safeguarding the rights and interests of villagers, and the channels of legal redress are ossified, this sort of corrupt village governance often sparks grassroots grievances and rage, with constant mass petitions and violent protests across the countryside. In Jia Jinglong’s village of Beigaoying, the village committee and Party committee, in the name of “remaking the old village,” coercively confiscated the rural residential land, designated a portion of it that had buildings demolished “clean land” for later government levies, and later used it for real estate development. This violated the set of legal institutions governing land management, and is a classic example of corrupt governance at the village level. The reason that the case received so much attention is because of how deeply felt the yearnings are for property rights and equal protection under the law by China’s vulnerable groups.
II. The Supreme People’s Court review ruling ignored Jia Jinglong’s forthright confession and guilty plea in evaluating the severity of punishment, violating Chinese criminal legal regulations about the standard for applying the death penalty, and the policy to “kill fewer and kill cautiously.”
Jia Jinglong’s commission of homicide took place for a reason; the means of the crime itself were not, compared to regular homicide cases, in any way special. Following the crime, Jia gave himself up, submitted himself to legal punishment, and there was no possibility of further criminal conduct. The “three extremes” determined in the Supreme People’s Court’s review ruling have no factual basis and are not based on objective evaluation.
Though Jia Jinglong’s self-confession was interrupted, after he was arrested and brought to trial he made a full confession of his crimes, admitting his guilt and repenting. According to Article 67, Section 3 of the Criminal Code, he should be accorded lenient punishment. Article 36, Section 3 of the “Provisions on Several Issues Concerning the Examination and Judgment of Evidence in Death Sentence Cases” issued by the Supreme People’s Court stipulates: “Circumstances that would make an evaluation of sentencing of the defendant more lenient cannot be excluded; extreme caution should be exercised in death penalty sentences.” Refusing to authorize the death penalty in this case is in complete conformance with the explicit stipulations in the law and the criminal justice policies of balancing leniency with severity in sentencing. As precedents in judicial practice dealing with weighing punishments of cases of homicide following forced demolition, there are, at least, the cases of Wang Maling’s homicide in Jiangsu, and Ding Hanzhong’s homicide in Shandong, both of whom were either not sentenced to death or did not have their death sentences authorized. Refusing to authorize the death penalty in these cases is a consensus in judicial practice.
Yet in the case of Jia Jinglong the Supreme People’s Court ignored the legal circumstances of the fault of the victim and the frank confession of Jia, artificially raising the evaluation of the severity of criminal conduct, hastily concluding a review ruling in favor of the death penalty. The absence of legitimate grounds for this decision has aroused questioning and criticism from the community of legal scholars, led to widespread attention from all walks of society, and impacted the judicial prestige of the Supreme People’s Court.
III. Supreme People’s Court Review Ruling Procedures Should Protect the Rights of the Defendant and the Defending Counsel
The Supreme People’s Court spent a mere 9 days in issuing its review ruling after defending counsel submitted its legal opinion; after providing defending counsel with the relevant case files, it allowed only 5 days for the submission of a written legal opinion. Such a short deadline prevents defending counsel from fully expressing its legal opinion, does not protect the right to be defended of the defendant, and as such fails to ensure that the case is being heard fairly and justly according to the law. Jia Jinglong also stated when meeting with his counsel that the judge presided over a rushed and hasty trial, and that prior to that point the court had not even received the letter of attorney entrustment.
We believe that the Supreme People’s Court should squarely face the specific problems in the work of death penalty review, reiterate the principle of judicial caution, abolish the provision and evaluative criterion that death penalty sentencing reviews be completed within three months, and substantially reform the practice of ignoring the rights of counsel to mount a defense.
IV. Our Account and Appeal
On the tenth anniversary of the Supreme People’s Court regaining control over review of death penalty sentences, we wish to give an account of this particular case, call for a stay on the application of the death penalty to Jia Jinglong, and urge that a new ruling be rendered. We hope that judicial organs will respect life, put the people first, place equal weight on the limits of applicability of the death penalty against corrupt officials as against ordinary defendants, and truly follow the principle of “equality before the law.” We recommend that the Supreme People’s Court attach importance to the role of the legal opinions of counsel in the death penalty sentencing review process, listen in-person to the opinions of defending counsel, and reform testimony procedures so that lawyers and prosecutors can all participate, and so that the legal opinions of lawyers can be more fully heard. We call for the Supreme People’s Court to further reform the death penalty sentencing review process to safeguard fairness in the judicial system, and to uphold the fundamental spirit of the rule of law.
Jiang Ping (江平), tenured professor, China University of Political Science and Law
Guo Daohui (郭道晖), consultant, Jurisprudence Research Group, China Law Society
Zhang Sizhi (张思之), nationally-prominent lawyer
Zhang Qianfan (张千帆), professor, Peking University School of Law
He Weifang (贺卫方), professor, Peking University School of Law
Xu Zhangrun (许章润), professor, Tsinghua University School of Law
Li Xuan (李轩), director, Legal Aid Center, Central University of Finance and Economics
Liu Zhiqiang (刘志强), professor of law, Guangzhou University
Wei Rujiu (魏汝久), director, Beijing Wei Rujiu Law Firm
Bi Wenqiang (毕文强), director, Beijing Shengting Law Firm
Zhang Peng (张鹏), partner, Beijing Zhongwen Law Firm
Ding Xikui (丁锡奎), lawyer, Beijing Mo Shaoping Law Firm